The Deputy asked a series of questions and I might take them in reverse order as the later questions can be more succinctly answered. This complies with the European Convention on Human Rights and there is no issue in that regard. Passengers will not be subject to any more extensive disclosure of information than they are now, and this provision is better than the one that has been there since 2007. It provides greater protection for individuals with regard to information issues compared to what was the case in the past.
The Deputy asked if this would be successful and the Deputy was not here when I referred to the investigation into the dreadful atrocity in Mumbai, and how access to passenger name record information led to identifying the individual who committed the atrocity. Once identified, the individual acknowledged responsibility for the atrocity. There are various examples of passenger name records in action and being successfully used. In August 2009, the research of this data linked to an ongoing human trafficking investigation identified pending travel of an individual with an Interpol red notice for trafficking women from eastern Europe. The Department of Homeland Security co-ordinated with Interpol and the subject was interdicted during travel from the Dominican Republic. Research of passenger name records associated with this individual led to the identification of five previously unidentified eastern European human trafficking victims, based on the form of airline ticket payment, address and e-mail in the passenger information. Additional research identified three additional subjects suspected of being involved with the trafficking of human beings for the purpose of prostitution.
I referred previously in a reply to Deputy McGrath to the usefulness in the context of such operations. On 22 June 2010, there was US-EU co-operation when the Department of Homeland Security identified a Nigerian travelling from Dallas to John F. Kennedy Airport to London who was suspected of being a narcotics courier. The Department of Homeland Security was unable to interdict the individual in New York but shared the individual's passenger name information with UK border agencies. Upon arrival, the individual was detained, admitted to swallowing 60 pellets of cocaine and was arrested before pleading guilty to narcotics smuggling. There is a series of additional examples showing the usefulness of this system in providing protection for communities and co-operation between law enforcement agencies across the world in seeking to ensure that those who engage in international criminality are apprehended.
Other queries were raised. I refer the Deputy to Article 13 because his first question was in the context of legislation by the United States. The Department of Homeland Security does not effectively have overriding powers over everything. The Department of Homeland Security has very substantial powers and I will not pretend that I have expertise in all of its areas of legislation. It has very substantial powers to address a broad range of areas in the United States, particularly dealing with terrorism, counter-terrorism and international criminality issues that create risks to the United States. It does not have a free run to violate an international agreement. This is an international agreement between the European Union and the United States which is subject to monitoring and review by the European and the United States. This is an agreement whose terms have to be complied with.
From an individual's perspective, Article 13 and following articles, of the US legislation, are particularly relevant as follows:
Article 13: Redress for Individuals
1. Any individual regardless of nationality, country of origin, or place of residence whose personal data and personal information has been processed and used in a manner inconsistent with this Agreement can seek effective administrative and judicial redress in accordance with U.S. law.
2. Any individual is entitled to seek to administratively challenge DHS decision related to the use and processing of PNR.
3. Under the provisions of the Administrative Procedure Act and other applicable law, any individual is entitled to petition for a judicial review in U.S. federal court of any final agency action by DHS. Further, any individual is entitled to petition for judicial review in accordance with applicable law and relevant provisions of:
(a) the Freedom of Information Act,
(b) the Computer Fraud and Abuse Act,
(c) the Electronic Communications Privacy Act; and
(d) other political provisions of U.S. law.
4. In particular, DHS provides all individuals an administrative means (currently the DH Traveler Redress Inquiry Program (DHS, TRIP) to resolve travel-related inquiries including those related to the use of PNR. DHS TRIP provides a redress process for individuals who believe that they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat. Pursuant to the Administrative Procedure Act and Title 49, United States Code, Section 46110, any such aggrieved individual is entitled to petition for judicial review in U.S. federal court.
The following oversight provisions in Article 14 are particularly important:
Article 14: Oversight
1. Compliance with the privacy safeguards in this Agreement shall be subject to independent review and oversight by Department Privacy officers, such as DHS Chief Privacy Officer, who:
(a) have a proven record of autonomy;
(b) exercise effective powers of oversight, investigation, intervention and review; and
(c) have the power to refer violations of law related to this Agreement for prosecution or disciplinary action, when appropriate.
They shall, in particular, ensure that complaints relating to non-compliance with this Agreement are received, investigated, responded to, and appropriately redressed. These complaints may be brought by any individual, regardless of nationality, country of origin, or place of residence.
An important aspect of this is contained in subparagraph 2 and it states:
2. In addition, application of this Agreement by the United States shall be subject to independent review and oversight by one or more of the following entities:
(a) the DHS Office of Inspector General;
(b) the Government Accountability Office as established by Congress;
(c) the U.S. Congress.
Such oversight may be manifested in findings and recommendations of public reports, public hearings, and analyses.
I want to particularly emphasise the last few words "of public reports, public hearings, and analyses."
There is, in the context of this particular agreement, extensive provision designed to ensure that the rights of individuals are protected. They are copper-fastened by the review process that the European Union can engage in on an annualised, effective basis. Of course, if this agreement was abused that information could immediately be given by any individual, so affected, to a Member State of the European Union, to the European Parliament or the relevant committee of the European Parliament that focusses on justice related issues. There is a broad range of protections in place which are detailed in the architecture of the agreement designed to address the concerns that the Deputy, quite properly, raised. They are genuine issues that deserve to be raised and discussed and the oversight provision is particularly important.